REHANA RIAZ Vs. NAUSHER ALI

JUDGEMENT

(1.) THE petitioners have preferred this revisional application under Article 227 of the Constitution of India challenging the order dated 31st May, 2013 passed by learned XIIIth Judge, City Civil Court, Calcutta in Misc. Appeal No. 32 of 2012, by which learned Judge of the Court below had set aside the order dated 2nd June, 2012 passed by learned Vth Bench, Presidency Small Causes Court, Calcutta in Miscellaneous Case No. 184 of 2006 under Order 9 Rule 13 of the Code of Civil Procedure.

(2.) THE petitioners being plaintiffs instituted ejectment suit against the opposite party/defendant before the Presidency Small Causes Court, Calcutta and in the said suit ex parte decree was passed. The opposite party filed Misc. Case No. 184 of 2006 praying for setting aside the ex parte decree passed in the ejectment suit on 7th February, 2006. The said Misc. Case was disposed of on 2nd June, 2012. The opposite party challenged the said order passed in the Misc. Case by preferring Misc. Appeal No. 32 of 2012 before the City Civil Court, Calcutta. The said Misc. Appeal was disposed of by order dated 31st May, 2013 and the petitioners being the respondents in the said Misc. Appeal has challenged the order dated 31st May, 2013 before this Court.

(3.) MR . Ashis Chandra Bagchi, learned counsel appearing on behalf of the opposite party/appellant has referred to the order dated 4th April, 2013 passed in Misc. Appeal No. 32 of 2012 and submits that learned advocate for the petitioners/respondents appeared before the First Appellate Court after receiving copy of memorandum of appeal and as such, fresh service of notice on the petitioners/respondents under Order 41 Rule 14(1) of the Code of Civil Procedure is not required. The further submission of Mr. Bagchi is that the object of service of notice on the respondent in an appeal is to give the respondent opportunity of hearing and when the respondent will appear in the appeal, the question of fresh service of notice on the respondent cannot arise.